The future of health reform

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JerrySlaughtercolorJerry Slaughter
Executive Director

It couldn't possibly get any more complicated than this. Or could it? The wistfully named Affordable Care Act (ACA) came into being in March 2010 against a backdrop of a bitterly divided Congress, an uncertain public and an economy on the skids. In the year and a half it has been the law of the land, things are about the same, except that Congress now has a Republican House of Representatives that is committed to either repealing or de-funding the ACA, the public is still uncertain, and the economy is, by almost any measure, in worse shape.

The future of the ACA rests on two significant and separate, but very much related, events. The first is the outcome of the legal challenges to the law. Two federal appellate courts have now ruled on the constitutionality of the individual mandate in the law–one for and one against. That provision requires most citizens to purchase health insurance or pay a monetary penalty. The legal challenges are slowly working their way up to the U.S. Supreme Court and how it will rule is anybody's guess. The Court could strike the whole law down, or invalidate the individual mandate but leave the balance of the law in place, or uphold it in its entirety. If the Court just excises the mandate from the law, presumably Congress could "fix" it if they were so inclined. That, however, brings us to the other key event on the horizon: the 2012 election, which is now just about a year away.

The country, increasingly restive and angry about the miserable economy, may have had all the fundamental transforming it can tolerate from the policies of the current president. If that happens, and if Congress continues to move towards the right, the future of the ACA will be very much in doubt. A new administration would undoubtedly bring a vastly different regulatory approach, as the Department of Health and Human Services leadership would also change dramatically. Although most observers feel it is unlikely that the law would be repealed in its entirety by a new Congress and President, the odds are pretty strong that it would be substantially revised, with its reach and scope pared back considerably.

In the meantime, the country is in a kind of limbo about the law. Is it prudent to continue to press ahead with its implementation, and further weave its provisions into the fabric of the health care system, or wait until there is a bit more clarity about its future, either from the Court or the Congress? In response to the law, the system is already beginning to see some signs of early realignment, consolidation and shifting in the provider communities. States, including Kansas, are trying to decide how quickly they should move to respond to the law's directives, whether preparing for the huge expansion expected in Medicaid, or building a health insurance exchange for the new market created by the law. It is a time of great uncertainty for nearly everyone in health care, and it will probably remain that way until the matter is settled, either by the courts or the Congress.

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